249 F. 763 | S.D. Ohio | 1918
' The defendant Duberstein, a bottler of soft drinks at Dayton, Ohio,, under the name of Dayton Mineral Water Company, bottles a product purchased by him from one John D. Fletcher, who calls his product “John D. Fletcher’s Carbonated Syrup, a genuine Coca and Cola Flavor.” He was the president of the Nashville Syrup Company, enjoined from malting and selling “Fletcher’s Coca-Cola.” 215 Fed. 527, 132 C. C. A. 39 (C. C. A. 6). The bottles in which Duberstein sells the product to the other defendants,' saloon keepers, etc., at Dajtion and vicinity, are approximately of the same size as Coca-Cola bottles, and in them is blown the words “Coca and Cola.” The “and” is in small type, and the “Coca” “Cola” in script, imitating the script of the genuine Coca-Cola trade-mark. The defendant Coshocton Glass Company is the maker of. bottles for Duberstein.
The validity of complainant’s trade-mark as the exclusive property of complainant, has been established in a number of cases elsewhere and in this circuit. Coca-Cola Co. v. Nashville Syrup Co. (D. C.) 200 Fed. 153; 215 Fed. 527, 132 C. C. A. 39 (C. C. A. 6). Defendant’s product is colored to an exact imitation of the color of complainant’s by the use of caramel, which serves no other purpose. The cap on defendant’s bottles contains the name'“Coca and Cola” in red, with other descriptions indicating that the contents is a flavor of coca and cola. There is no trace of the coca shrub or cola nuts or coca leaves in it. The testimony shows conclusively that it was intended to deceive the consuming public, and in many proved instances did deceive ; but, aside from this, the appearance, coloring, size, caps, the delivery slips,' the name. “Coca and Cola” blown in the bottle, make the product on its face a fraud on the complainant and on the public. The complainant is entitled to an injunction against all the defendants in accordance with its prayer, and for an accounting.
This is illustrative of a strange lack of perception on the part of defendant Duberstein, and by many, as the decisions show, in cases of infringement of trade-mark and unfair competition, that the courts deal with matters of substance rather .than of form, and that the odor of fraud is difficult to remove. This case reeks with it. Why does-the defendant use the word “Cola” at all? And why color its product
Pasting the label “El-Cola” affords no protection to defendants’ illegal act._ These bottles are in contact with ice and water all the time while waiting for use. Aside from the instances proved of the labels having become detached, their liability to become detached is so great as not to afford protection, even if their permanency would be a protection. Prest-O-Lite Co. v. Davis (D. C.) 209 Fed. 917, affirmed 215 Fed. 349, 131 C. C. A. 491 (C. C. A. 6); Prest-O-Lite Co. v. Bogen (D. C.) 209 Fed. 917; Prest-O-Lite Co. v. Avery Lighting Co. (C. C.) 161 Fed. 648; Evans v. Von Laer (C. C.) 32 Fed. 153; Wood v. Burgess (1890) 59 Law Jour. N. S. 11; Thwaites & Co. v. McEvilly, 20 Rep. Pat. Cas. 663, affirmed 21 Rep. Pat. Cas. 397, 401, 402.
It is also proved that defendants’ “El-Cola” is palmed off by dealers as “Coca-Cola.” But the label, if permanent, affords no protection. “El-Cola” is in itself an infringement of complainant’s trade-mark “Coca-Cola.” Complainant has cited more than 25 applicable decisions.
In addition to the injunction, plaintiff may take an order finding Dubersiein guilty of contempt, the punishment to be determined when the formal order is taken.